from the but-of-course dept

The other shoe just dropped when it comes to how the federal government illegally spies on Americans. Last summer, the details of the NSA's "backdoor searches" were revealed. This involved big collections of content and metadata (so, no, not "just metadata" as meaningless as that phrase is) that were collected under Section 702 of the FISA Amendments Act (FAA). This is part of the program that the infamous PRISM effort operates under, and which allows the NSA to collect all sorts of content, including communications to, from or about a "target" -- where a "target" can be incredibly loosely defined (i.e., it can include groups or machines or just about anything). The "backdoor searches" were a special loophole added in 2011 allowing the NSA to make use of "US person names and identifiers as query terms." In the past, it had been limited (as per the NSA's mandate) to only non-US persons.

This morning, James Clapper finally responded to a request from Senator Ron Wyden concerning the number of such backdoor searches using US identifiers that were done by various government agencies. And, surprisingly, it's redaction free. The big reveal is... that it's not just the NSA doing these searches, but the CIA and FBI as well. This is especially concerning with regards to the FBI. This means that the FBI, who does surveillance on Americans, is spying on Americans communications that were collected by the NSA and that they're doing so without anything resembling a warrant. Oh, and let's make this even worse: the FBI isn't even tracking how often it does this. It's just doing it willy nilly:

The FBI does not track how many queries it conducts using U.S. person
identifiers. The FBI is responsible for identifying and countering threats to the homeland, such
as terrorism pilots and espionage, inside the U.S. Unlike other IC agencies, because of its
domestic mission, the FBI routinely deals with information about US persons and is expected to
look for domestic connections to threats emanating from abroad, including threats involving
Section 702 non-US. person targets. To fulfill its mission and avoid missing connections within
the information lawfully in its possession, the FBI does not distinguish between U.S. and non-
U.S. persons for purposes of querying Section 702 collection. It should be noted that the FBI
does not receive all of Section 702 collection; rather, the FBI only requests and receives a
small percentage of total Section 702 collection and only for those selectors in which the
FBI has an investigative interest.

Moreover, because the FBI stores Section 702 collection in the same database as
its "traditional" FISA collection, a query of "traditional" FISA collection will also query Section
702 collection. In addition, the FBI routinely conducts queries across its databases in an effort to
locate relevant information that is already in its possession when it opens new national security
investigations and assessments. Therefore, the FBI believes the number of queries is substantial.
However, only FBI personnel trained in the Section 702 minimization procedures are able to
View any Section 702 collection that is responsive to any query.

Got that? Basically, the FBI often asks the NSA for a big chunk of data that the NSA probably shouldn't have in the first place -- including tons of Americans' communications, and the FBI gets to dump it into the same database that it is free to query. And the FBI tracks none of this, other than to say that it believes that there are a "substantial" number of such queries. This would seem to be a pretty blatant attempt to end run around the 4th Amendment, giving the FBI broad access to searching through the communications of Americans with what appears to be almost no oversight.

Yikes!

Oh, and it's not just the NSA, but the CIA as well. Remember, the CIA is not supposed to be doing any surveillance on US persons (like the NSA), but that's not what's happening at all. At least the CIA tracks some (but not all) of its abuse of backdoor searches:

In calendar year 2013, CIA conducted fewer than 1900 queries of Section 702-acquired communications using specific U.S. person identifiers as query terms or other more general query terms if they are intended to return information about a particular U.S. person. Of
that total number approximately 40% were conducted as a result of requests for
counterterrorism-related information from other U.S. intelligence agencies. Approximately 27%
of the total number are duplicative or recurring queries conducted at different times using the
same identifiers but that CIA nonetheless counts as separate queries. CIA also uses U.S. person
identifiers to conduct metadata-only queries against metadata derived from the FISA Section 702
collection. However, the CIA does not track the number of metadata-only queries using U.S.
person identifiers.

So, the CIA is doing these kinds of warrantless fishing expeditions into the communications of Americans as well, but at least the CIA tracks how often it's doing so. Of course, when it comes to metadata searches, the CIA doesn't bother. It's also a bit bizarre that the CIA is apparently carrying out a bunch of those searches for "other U.S. intelligence agencies," when the CIA should be especially limited in its ability to do these searches in the first place.

Senator Wyden has responded to these revelations by pointing out how "flawed" the oversight system is that these have been allowed:

When the FBI says it conducts a substantial number of searches and it has no idea of what the number is, it shows how flawed this system is and the consequences of inadequate oversight. This huge gap in oversight is a problem now, and will only grow as global communications systems become more interconnected. The findings transmitted to me raise questions about whether the FBI is exercising any internal controls over the use of backdoor searches including who and how many government employees can access the personal data of individual Americans. I intend to follow this up until it is fixed.

Hopefully, now you are starting to recognize what a big deal it was last week when the House of Representatives recently voted to defund the ability to do these kinds of backdoor searches. Still, much more needs to be done.

Oh, and in case you're wondering why Clapper finally 'fessed up to the FBI and CIA making use of these data to warrantlessly spy on Americans, it's worth noting that the Privacy and Civil Liberties Oversight Board (PCLOB) is expected to come out with its report on the Section 702 surveillance program on July 2nd (7/02, get it?). It seems likely that the report will discuss these backdoor searches on Americans and how other agencies besides the NSA has been involved in the practice.

from the this-is-good dept

One of the more annoying things about the current Supreme Court is how it always seems to figure out ways to avoid actually tackling the key questions that people are asking. For example in the Jones v. US case, the court very carefully tiptoed around actually answering the question of whether or not law enforcement putting a GPS on a car required a warrant. Some of the Justices suggested it should, but it wasn't part of the official ruling. So, it gets left out there in the ether for people to try in other lawsuits. And now an appeals court has ruled on the issue, saying that a warrantless GPS tracking of someone's car is a 4th Amendment violation. The court goes into a full exploration of the 4th amendment and how it applies here. It's well worth reading (starting around page 18). Law enforcement's argument is in for a tough time:

We therefore begin with the following observation:
under the physical intrusion theory of the Fourth Amendment,
the police actions in this case — i.e., physical entry upon and
occupation of an individual‟s house or effects for purposes of
ongoing GPS tracking — are highly disconcerting.

It then goes through a thorough look at each of the government's arguments for why a warrantless GPS search could be deemed "reasonable" and finds each one wanting. The main one is that the government insists that if there's a "reasonable suspicion," they should be able to do a warrantless search. The court's not buying it.

While the interests the police wished to further in this case are
certainly important, the same interests arise in every
investigation where the police have a potential suspect. We
are hard pressed to say, therefore, that the police can —
without warrant or probable cause — embark on a lengthy
program of remote electronic surveillance that requires almost
no law enforcement resources and physically intrudes upon
an ordinary citizen‟s private property.

This is in the third circuit and I'd imagine that there will be an appeal to the Supreme Court. Given the Court's avoiding the question in the Jones case, hopefully it will take it and support the argument that the 4th Amendment does apply to GPS searches and a lack of a warrant is unconstitutional. Of course, what I still don't understand in all of this is why law enforcement seems so averse to actually going out and getting a warrant. Is it really that difficult?

from the secret-laws! dept

Remember how President Obama, while campaigning, promised to reject the questionable spying practices of the federal government of President Bush? Yeah, forget all that. Over the past two years, we've seen time and time again that he's actually extended those abuses even further. The latest to come out is that the Justice Department is now claiming that the FBI has the right to get phone records on any call made from inside the US to an international numberwithout any oversight. You may recall a few years back that there was a similar controversy, when it came out that the FBI would regularly just call up phone companies and ask for records -- despite the fact that this violates certain laws designed to protect consumer privacy. Sometimes, they would just use post-it notes.

Apparently, a year ago, McClatchy newspapers put in a FOIA request, asking for the details of a particular Office of Legal Counsel (OLC) memo that was mentioned in the (previously released, but highly redacted) report that showed how frequently the FBI abused the law in this manner. The OLC took its sweet time responding, but finally responded, and in the cover letter admitted that the Obama administration believes it is perfectly legal for the FBI to route around the in-place oversight for getting access to such records and claimed that the law said so.

Which law says so? Oh, see, that they can't say. Yes, the part of the letter that explains which law lets the FBI get these records without oversight was redacted.

It's a secret law! And here I thought, in the US, if the government was going to base actions on a particular law, at the very least, they were supposed to tell you what law. Apparently, the Justice Department under the Obama administration does not believe that to be the case.

Basically, what this means is that the federal government believes that it's free to request information without first getting court approval -- and without telling the public what law says they're allowed to get this information. That's not what the laws on the books seem to say at all. But, of course, big telcos such as AT&T, who are so closely tied to the government, are going to roll over and give the government such info (or, perhaps, give them direct access to the info), even if it violates other laws. Why do you think President Obama voted to support giving telcos retroactive immunity on this issue, while he was running for President despite having earlier said he was against it? Now that he's in power, he apparently is perfectly happy to let the FBI twist the clear intentions of the law to spy on Americans without oversight, and then to refuse to reveal what law he's relying on to make such spying on Americans without oversight legal.

McClatchy quotes Michael German, a former FBI agent, who now works for the ACLU pointing out the obvious:

"It's wrong that they're withholding a legal rationale that has to do with the authorities of the FBI to collect information that affects the rights of American citizens here and abroad.... The law should never be secret. We should all understand what rules we're operating under and particularly when it comes to an agency that has a long history of abuse in its collection activities."

And so far, it doesn't seem like most people care. About the only politician who really seems concerned about this is Senator Wyden, who says this level of secrecy "is a serious problem" and he's "continuing to press the executive branch to disclose more information to the public about what their government thinks the law means." Once again, kudos to Senator Wyden for being one of a very small number of politicians who seems to consistently be concerned about the rights of individuals. But it's sad that the rest of our elected officials aren't up in arms about this. The government shouldn't be spying on Americans, and if it is, it should at least have to tell Americans what law it's basing that decision on.

from the the-amazing-legal-obstacle-course dept

As we continue to debate the question of telco immunity, there's a separate, but related legal issue that's worth paying attention to as well: the question of who can actually sue about having their rights abused by supposedly warrantless wiretaps. Earlier this year, the Supreme Court ruled that various groups such as the ACLU couldn't sue because they had no "standing" (i.e., proof that they were impacted by the warrantless wiretaps). It's a bit convoluted when you think about it: there's no way to determine if illegal spying took place because the only way you could get the evidence would be to first prove you have the evidence that it took place. But if you think that's twisted, it gets even more bizarre.

It turns out that in one related case, the government accidentally sent over proof that it used a warrantless wiretap to monitor a certain group. Thus, that group can actually show it has standing... sorta. One of the lawyers involved in pushing just such a lawsuit forward has a stunning tale explaining the amazing obstacle course he had to traverse to actually have this lawsuit move forward (and it's not over yet). Basically, the government claims the information in the document is still secret, even though it gave it out, and some of the details have been reported on the news (in business contexts once info is out, it's no longer secret -- apparently, not so with the government).

Where things get really bizarre, though, is in how the lawyers on this case can actually deal with this evidence it has. Basically, they had to destroy all copies they had of the evidence in question, and can sort of obliquely refer to it from memory in secret filings that are written under the watchful eye of the Justice Department, officially to make sure that the "classified info" remains classified. Even better, the lawyers had to respond to a secret filing from the Justice Department that the lawyers weren't even allowed to see. The case is far from over -- as the latest ruling basically set up another ridiculous tightrope for the lawyers to walk -- basically saying that they can't use the evidence in the document because it would prove their case. Instead, they first have to prove it without the document, and then if they do that, they can use the document (after it's basically no longer necessary). And there's all sorts of side amusements, such as reading about how the Justice Department tries to destroy the lawyer's computer to make sure there's no secret documents on there (it's like a scene from a bad comedy, where they discover that simply banging a hard drive on a table isn't an effective way to damage it). And, there's also the bit where the Justice Department refuses to let one lawyer take part in the drafting of the secret filing because they just don't like him.

This has gone way beyond protecting state secrets or providing security and protection to American Citizens. As you read the details, it's quite clear this is about doing whatever possible to hide what was almost certainly an illegal move by the administration. If telecom immunity is granted, then this particular case, Al Haramain v. Bush, would basically be the only case left that looks into the legality of warrantless wiretapping. Say what you want about the importance of protecting US citizens, the American Constitution set up a system of checks and balances for a very good reason: so no single group has enough power to make the rules itself. This whole thing shows how the executive branch is trying to guarantee there are no checks or balances on some of its activities. That's a very scary precedent and on that anyone -- no matter what your political persuasion -- should be against.